U.S. Supreme Court denies TEC petition

Nov. 3, 2014

We give thanks this morning that the Supreme Court of the United States has denied the petition of the TEC plaintiffs for a reversal of the Texas Supreme Court ruling of August 2013. We are grateful to attorneys Aaron Streett and Michelle Stratton for presenting our response to the Court.

This development allows us to turn full attention to the Summary Judgment filing that will soon be made in the 141st District Court. In addition, we are assured that the Texas Supreme Court ruling will govern the outcome of our case. 

“We are pleased,” said Bishop Iker, “that the Supreme Court has agreed with our position that the TEC petition for a review was without merit. We now move forward to a resolution of this case under neutral principles of law as applied in the State of Texas.”

Analysis of the decision may be found on attorney Allan Haley's blog.

The diocesan legal team was notified yesterday that TEC parties have filed an appeal with United States Supreme Court (USSC) asking it to review the Texas Supreme Court's judgment in our case. This form of appeal is known as a Petition for a Writ of Certiorari (review of the case).

Historically, the USSC agrees to review only 1 in 100 of the certiorari petitions filed annually. Our attorneys believe there is little chance the Court will review our case because (1) there is no final judgment yet; (2) the USSC has no power to review issues of Texas law unless there is a violation of the U.S. Constitution; and (3) TEC’s petition asks the Court to abandon the Neutral Principles approach to church property disputes, which every state has adopted for the last 30 years.

To speed up this process, the Diocese plans to waive a response to TEC’s petition. The Court’s practice is not to grant certiorari without requesting a response first, so our “waiver” merely means that we will not file a response unless and until the Court asks for one. That way the petition goes to the justices’ chambers for a potential denial in the near future; if we file a response it delays distribution to the justices’ chambers by several months.

This filing does not affect the calendar that has been set in the 141st District Court.

First came the ruling against TEC in the direct appeal we brought to the Texas Supreme Court, issued on August 30. Second came the denial of TEC’s request for the court to rehear (or reconsider) that ruling. And now comes their third loss, on April 17. The high court has denied TEC’s motion to recall the mandate it sent to the trial court, which would have “stayed the proceedings” (stopped the legal process in Texas) while they try to get a review of our case from the U.S Supreme Court. Apparently the state Justices agreed with our attorneys that it is highly unlikely the U.S. Supreme Court will review the case at this stage. Nonetheless, TEC has until June 19 to seek review at the national level.

The next step in the litigation here in Fort Worth is a hearing at 9 a.m. on Thursday, April 24, in the courtroom of Judge John Chupp, where we have requested that he set aside the supersedeas order and refund to the Diocese the $100,000 cash bond we posted two years ago in order to maintain possession of our property. With his original decision having now been reversed by the Texas Supreme Court, there are no legal grounds for the order to remain in effect.

In addition, attorneys for the Diocese are completing new pleadings and a revised motion for summary judgment, which should be filed with the 141st district court sometime next month.

Once again, it is time for the TEC lawyers to come clean with their clients about their prospects in this case and to stop filing more and more unnecessary legal motions that only delay the process. Without a significant benefactor paying all their legal fees, the small little group calling itself “the local Episcopal parties” could never have taken matters this far. It is prudent for them to cut their losses and move on.

Thank you for your continued prayers and support. Let us give thanks to the Lord for his goodness and grace as we fight this spiritual battle that has been thrust upon us.

The Rt. Rev. Jack Leo Iker
Bishop of Fort Worth

Local TEC attorneys notified us today that they will petition the United States Supreme Court to overturn the ruling of the Texas Supreme Court, which calls for the 141st District Court in Fort Worth to proceed with a new hearing on the property dispute between TEC and the Diocese of Fort Worth. In order to buy time for this, they are asking the Texas Supreme Court to recall the mandate issued on March 21 for the lower court to proceed in accordance with the directives in its opinion.

The request to the Supreme Court of Texas is one the court does not have to grant. Unless the request persuades the court there will be substantial damage to those making the request, the court is unlikely to grant the request. Our attorneys will point out to the court the hardships that will be caused by the delay, if the mandate is recalled.

In the meantime, the Diocese has petitioned the trial court to set aside the supersedeas order of October 2011 that required us to deposit a $100,000 cash bond into the registry of the court and to make monthly financial reports to our opponents. If granted, the deposit would be returned to the Diocese, with interest, and further reporting canceled.

Bishop Iker said of this latest ploy by TEC: “This is a last-ditch, desperate act on the part of a group that now realizes theirs is a lost cause in Texas. It shows how far they will stretch to delay and confuse, to prevent the proceedings from being brought to a conclusion.”

The record shows that the TEC group pursuing this case consists ofseven self-supporting parishes and 10 small splinter groups meeting at different locations. On the other hand, our Diocese is comprised of 30 self-supporting parishes, 18 aided mission churches, and 10 mission stations, with an average Sunday attendance of over 5,230 members.

It is highly unlikely that either the US or the Texas Supreme courts will grant either motion.  While we continue to make our case based upon Texas laws governing property ownership, trusts, and corporations, TEC loyalists argue from sentimentality and a “my church right or wrong” mindset.

The Episcopal Church and its local supporters in Fort Worth have suffered a second defeat from the Texas Supreme Court. On August 30, 2013, the high court reversed a lower-court decision that favored TEC’s claim to all church property in the Diocese of Fort Worth, which left the denomination in 2008. Today the Court denied TEC’s subsequent motion to rehear the case which now returns to the lower court for a new hearing and summary judgment based on neutral principles of law, not deference to a hierarchical church. We praise God for this very good news.

Some speculate that TEC will now seek a review of the ruling from the U.S. Supreme Court as a further delaying tactic, but given past decisions on cases similar to this, it is highly unlikely that such a request would be granted. In recent appeals, the SCOTUS has left church property disputes to each state Supreme Court to decide. Moreover, the Texas Supreme Court will issue its mandate referring the case to the trial court, regardless of any such filing.

Shelby Sharpe, a member of the Diocese’s legal team, explains, “According to Blake Hawthorne, the clerk of the Court in Austin, the mandate should issue today and be received next week by the clerk of the 141st District Court here in Fort Worth. The receipt of the mandate places the case back for trial. Whether there will be a TEC appeal to the United States Supreme Court, we will find out in due course. Regardless, proceedings will resume in the 141st following receipt of the mandate. We expect a favorable outcome based on the opinions in our case and the San Angelo case. The entire legal team gives thanks to the Lord for this victory, and we thank the Supreme Court for its diligent work on this case.

“Next, we will file a motion to set aside the supersedeas bond and recover the $100,000 placed in the registry of the court over two years ago. This will also remove the monthly requirement on congregations to give financial reports to our opponents.”

The ruling comes as great encouragement to the Diocese of Fort Worth (formed in 1982) and signals a favorable outcome in the dispute with TEC over property and assets, which has been going on for the past six years.

“We are greatly relieved by the finality of the Court’s ruling,” Bishop Iker said. “TEC’s rehearing strategy has delayed us from moving on with this case by more than six months and at the cost of several thousands of dollars to oppose it. My advice is that TEC cut its losses and get on with their life without the Diocese of Fort Worth. Their litigation strategy has failed.”

Let us continue to give thanks to God for his blessings and for answered prayer.

As planned, the Diocese filed a motion today in response to the TEC parties' petition for rehearing before the state Supreme Court. Our response was submitted at the request of the Court. You may read it here:

Response to Motion for Rehearing (PDF)

In its August 30 ruling, the Court reversed the trial court’s decision and ordered that the suit against us should be settled on the basis of Neutral Principles of Law, sending the case back to the trial court with instructions to apply Neutral Principles. While it is the right of the TEC parties to appeal this decision by asking for rehearing, such requests are rarely granted.

Please keep the Justices in your prayers as they consider the request before them.

The Texas Supreme Court has granted a TEC request for an extension of 30 days of time to file a motion to rehear the case decided against them on August 30th.  TEC attorneys in the other church property dispute decided against them on that same day (Good Shepherd, San Angelo), have done the same thing.

Motions for rehearing are almost always filed following a decision of the Court. But what are their chances of getting one? Clearly the odds against such motions are very steep, and they are almost never granted. In a concurring opinion written by our attorney, Scott Brister, while a member of the Texas Supreme Court in 2009, he discussed the infrequency of parties being successful in pursuing motions for rehearing, quoting the following statistics:

“In the last 10 years, this Court issued more than 1100 majority and per curiam opinions. On rehearing, we changed less than 50 of the opinions, and those almost always in minor respects that had no effect on the judgment. In only four cases did the prevailing party in the judgment change. Thus, the chance that an original judgment will differ from the final judgment is about 1 in 300.”  Edwards Aquifer Auth. v. Chemical Lime, Ltd., 291 S.W.3d 392, 412 (Tex. 2009) (Brister, J., concurring).  These motions are granted so rarely that the rules do not even require responses to such motions unless the Court asks for one.  TRAP 64.3.

So here we go again! This will delay final resolution of this dispute by several months. What do these people have against simply moving forward in the trial court, as directed by the Supreme Court decision? More delays – more expense – more Episcopal arrogance claiming that TEC can’t possibly be wrong!

Patience and prayer must continue.  By God’s grace, we will prevail in due course.

The Rt. Rev. Jack Leo Iker
Bishop of Fort Worth

Also see:

Bishop Iker’s thoughts on “Living with Litigation”

August 30 Pastoral Letter to the Diocese

Previously:

The state of Oregon has joined a majority of other states in support of the neutral principles approach to church property settlements, bringing the total nationwide to 38. In a Nov. 29 opinion resolving a Presbyterian church's dispute, the Oregon Supreme Court adopted neutral principles and vigorously supported the role of state-level trust laws for establishing property ownership.

In light of this decision, our legal team has filed a letter brief with the Texas Supreme Court and updated our Bench Exhibit 1 of Oct. 16.

The additional brief approved for filing by the Court in advance of our oral argument on Oct. 16 was filed with the clerk today. The filing concludes with a two-page chart titled “Setting the Record Straight” which clarifies certain statements made by the TEC parties.

Within minutes of this filing, the attorney for the Presiding Bishop of TEC submitted an additional eight-page “letter brief” to the clerk. While asking the Court to enforce the national canons upon the Diocese, it does not explain how trustees of a Texas nonprofit corporation may be removed and replaced by outside interests.

Leaders of the Diocese of Fort Worth and its Corporation, along with our legal defense team, were encouraged Tuesday by the thoughtful questioning by the justices of the Texas Supreme Court during oral argument. Each of the seven justices in attendance engaged in the discussion, and their questions showed a high degree of preparation for the 40-minute hearing.

Scott Brister represented the Diocese and Corporation; on the other side of the aisle, Thomas Leatherbury represented local Episcopal parties, and Mary Kostel, an attorney chosen by the Presiding Bishop’s chancellor, represented The Episcopal Church. Both parties expressed a desire for the Supreme Court to render its own decision in the case, rather than remanding it back to the 141st District Court in Fort Worth for a revision to the judgement rendered there in January 2011. Although both parties also agreed that the Corporation holds title to diocesan property, the main question the justices are being asked to decide is whether state law will be applied to church property disputes in the same manner in which it is applied to all other property disputes in Texas.

Within the next 30 days, our legal team will file a post-submission brief. The Court has approved the additional brief to allow the Diocese to respond to a filing it accepted from the TEC parties on the eve of oral argument, an exception to the Court's usual page limits for appeals.

While it is impossible to predict when a ruling will be made, the legal team hopes for a decision by next spring. The ruling will be precedent-setting, whatever the outcome. Till that time at least, our congregations will remain in the properties they now occupy. Our legal team asks for continued prayer for the justices as they confer regarding our case, and particularly for the justice who will be assigned to author the ruling.

Immediately following oral argument in our appeal, the Court heard the appeal of Church of the Good Shepherd, San Angelo. Archived video recordings of both sessions can be found by searching for “October 2012” on the Court's Web pages.

Following the morning's oral arguments, Mr. Brister commented, “It was an honor to represent Bishop Iker and the Episcopal Diocese of Fort Worth today before the Texas Supreme Court and a packed courtroom. The members of the Court were obviously well-prepared, and their questions reflected the thought they have already given to this case. We expected these issues would eventually have to be decided by the highest Court in Texas, and the experience did not disappoint.”

Bishop Iker expressed his gratitude to the legal team, whose members have represented us so faithfully, and to all those who made sacrifices of fasting and prayer for the hearing today. He added, “We were greatly encouraged by the dynamics in the courtroom today. There can be little doubt that ours is a clear and convincing case.”

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Two “bench exhibits” were given to the justices this morning as part of our presentation at oral argument. One is a chart showing which states already have adopted the neutral-principles method of resolving church property disputes. The other sets out key points about the case and concludes with a chart showing TEC’s recent history of involvement in church property cases. They are linked below.

We are pleased to announce that the Texas Supreme Court has set October 16, 2012, as the date to hear oral arguments in our direct appeal of the trial court ruling in the property litigation brought against us by The Episcopal Church. This is the same date previously set to hear a similar case involving the Church of the Good Shepherd in San Angelo.

Bishop Iker and our legal team are extremely pleased with this development, which brings us closer to a complete resolution of the lawsuits which began in April 2009 against the Diocese and Corporation.

Please continue to remember our attorneys – Scott Brister, Shelby Sharpe, and David Weaver – in your prayers as they prepare for their appearance before the court on our behalf.

Attorneys for the Diocese, Corporation, and congregations have filed a Motion to Expedite Oral Argument in our appeal to the Texas State Supreme Court. This extraordinary request was prompted, in part, by the threat of ecclesiastical discipline against the seven TEC Bishops who filed a brief in April as friends of the court, describing the structure of TEC hierarchy, as expressed in the Constitution and Canons which govern TEC’s General Convention and its relationships with member dioceses.

The Motion seeks a date for oral argument not later than October 16 this year. That is the date the Court has set to hear arguments in the appeal of Church of the Good Shepherd, San Angelo.

Because the Court is currently in recess, it is not expected to consider the Motion before it reconvenes in August. Action against the bishops was initiated at the end of June.

More information is available at the links below.

Motion to Expedite Oral Argument

June 30 report of a complaint against the bishops

Note: This story is ongoing. Read more at anglicanink.com

Seven bishops of The Episcopal Church, along with the Anglican Communion Institute, have submitted a brief to the Texas Supreme Court on a matter of significance to the appeal of the Diocese and Corporation. The bishops include five active and two retired episcopal leaders. They are the Rt. Rev. Maurice M. Benitez, retired Bishop of Texas; the Rt. Rev. John W. Howe, retired Bishop of Central Florida; the Rt. Rev. Paul E. Lambert, suffragan Bishop of Dallas, the Rt. Rev. William H. Love, Bishop of Albany; the Rt. Rev. D. Bruce MacPherson, Bishop of Western Louisiana, the Rt. Rev. Daniel H. Martins, Bishop of Springfield; and the Rt. Rev. James M. Stanton, Bishop of Dallas. The leaders of the ACI are the Rev. Christopher R. Seitz, the Rev. Philip W. Turner, and the Rev. Ephraim Radner.

The 29-page brief, filed Monday, April 23, seeks to clarify TEC polity, which the ACI and the seven bishops believe was misunderstood by the Fort Worth trial court when it issued its summary judgment ruling. Specifically, the brief states that attorneys for The Episcopal Church parties sought “to establish an alternative authority to that of the diocesan bishop” in their pleadings, which is contrary to TEC’s structure, as expressed in its Constitution and Canons. A correct understanding will necessitate the reversal of the summary judgment against the Diocese and Corporation, the brief argues, since TEC is hierarchical at the level of the diocese.

Read the Amicus Brief (PDF).

Read the ACI statement.

Attorneys for the Diocese, Corporation, and congregations filed a reply brief with the state Supreme Court on Friday, March 23. This is the conclusion of a process set by the Court when it accepted our case on direct appeal from the 141st District Court. The latest brief answers issues presented by the TEC parties in their response (filed March 8) to our original Feb. 6 brief [see the article below].

An opportunity for oral argument has been requested. Currently the Court has not set any future hearing dates.

In a 49-page brief filed today with the Texas State Supreme Court, attorneys for the Diocese, Corporation, and congregations asked the Court to uphold several previous Appellate Court decisions and establish Neutral Principles as the method for resolving church property disputes in the state.

Members of the Texas State Supreme Court

Neutral Principles, accepted in 36 states and approved by the U.S. Supreme Court since 1979, is a method of settling questions of church property ownership using the same rules that govern ownership of other types of private property, and it removes courts from wading into doctrinal disputes.

The brief also asked the Court to reverse the Fort Worth trial court's February 2011 decision in favor of the Episcopal parties' claims to diocesan property, and instead to uphold well-established state codes on trust instruments and non-profit corporations. The brief asks the Court to grant the Diocese's summary judgment claims and prevent a hostile takeover of diocesan property by outside parties.

The brief concludes:

If given a chance, this case might have been settled amicably with five or six churches leaving
the Diocese with their church buildings intact and the vast majority continuing in it. But that opportunity was lost when TEC demanded everything held by anybody, even if that included
local churches where TEC had not a single adherent. Based on the deeds, the church
constitutions and canons, and Neutral Principles of Texas law, the Plaintiffs are not entitled to
any of this.

This case is not a contest about which bishop or group TEC can claim as its own; it is about
what property TEC can claim as its own. The only way it can take property it has never
owned or paid for is if Texas courts defer to whatever TEC says — even if that is contrary to
its own church rules. Under Neutral Principles of Texas law, the Defendants are entitled
to summary judgment against the Plaintiffs’ claims.

Following today's filing, the TEC parties have until Feb. 27 to submit a reply; a response from the Diocese is due by March 13. Oral argument has been requested; a date has not yet been set by the Court.

The elected officers of the Diocese and Diocesan Corporation were extremely pleased today to learn that the Texas State Supreme Court has granted our motion for direct appeal. The Court has agreed to reconsider the February 2011 decision by the 141st District Court, which would result in the surrender of all property to representatives of the New York-based Episcopal Church.

The Diocese's written brief is due to be filed with the Court by Feb. 6. The opposing parties may respond by Feb. 27, after which the Diocese will have about two weeks to reply. A hearing date has not been set.

Commenting on the news, Bishop Jack L. Iker said, “We are delighted with the decision of the Texas Supreme Court to grant our request for a direct appeal in the lawsuit brought against us by The Episcopal Church. It is very rare for a direct appeal to be filed in the first place, and it is even rarer for the Supreme Court to grant one. It is clear that the Court understands that key questions of the constitutionality of Texas statutes, trust codes, and property laws are at issue in this litigation.

“It is our hope and expectation that the Supreme Court, using neutral principles of law, will rule in our favor.”

With one Episcopal church property appeal from the Church of the Good Shepherd in San Angelo already before the Court, it is even more significant that the court has moved so swiftly to take up our case. This announcement encourages us to believe that the Court finds merit in our case, and it renews our hope of an early conclusion to litigation that has already consumed almost three years and millions of dollars in legal expenses.

“It is gratifying,” said Fort Worth attorney J. Shelby Sharpe, who heads the diocesan legal team,“ that the court has granted the petition for direct appeal in this critical religious freedom case. We look forward to the court's ultimate decision, which should be helpful to other courts facing similar issues.”